Summary:
In occupational disease case, insurer argued that 1995 version of the
OD Act applied because claimant’s last day of employment was March 14,
1996, although her occupational disease arose prior to the effective date
of the 1995 OD Act. Insurer relied on statements in Supreme Court decisions
where the issue was running of the statute of limitations in a permanent
total disability case, not the issue here.

Held:
Where claimant’s right to compensation accrued at the time she filed her
occupational disease claim, the law in effect at that time controls. This
is consistent with the general rule in workers’ compensation cases that
the law in effect at the time of injury controls the case.

Topics:

Occupational Disease:
Applicable law. Where claimant’s right to compensation accrued
at the time she filed her occupational disease claim, the law in effect
at that time controls. This is consistent with the general rule in workers’
compensation cases that the law in effect at the time of injury
controls the case.

Statutes and Statutory
Interpretation: Applicable law. Where
claimant’s right to compensation accrued at the time she filed her occupational
disease claim, the law in effect at that time controls. This is consistent
with the general rule in workers’ compensation cases that the law in
effect at the time of injury controls the case.

During a conference with claimant,
Ms. Theda Bea Bouldin, and Mr. Larry W. Jones, who represents Liberty
Northwest Insurance Corporation (Liberty) in this matter, Mr. Jones raised
an issue with regard to the law applicable to this case. Specifically,
he contends that the Occupational Disease Act (ODA) as amended by
the 1995 legislature is controlling even though claimant filed her
claim prior to the effective date of the 1995 amendments. The amendments
adversely impact the payment of claimant's medical expenses by incorporating
the medical expense limitations found in the 1995 Workers' Compensation
Act. § 39-72-704, MCA (1995). Those limitations are not present in
the 1993 ODA. § 39-72-704, MCA (1993).

The effective date of the
1995 amendments to the Montana ODA was July 1, 1995. 1995 Montana Laws,
ch. 243, §29. In workers' compensation cases, the Montana Supreme Court
has consistently held that the law in effect on the date of the worker's
industrial injury governs his or her entitlement to benefits. Buckman
v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380,
382 (1986). Liberty argues, however, that in the case of an occupational
disease the governing date is the last day of employment. It says that
claimant's last day of employment was March 14, 1996, thus the 1995 version
of the ODA applies. (Respondent's Memorandum Re: Determination of Governing
Occupational Disease Act at 1.)

In Gidley the husband
of the claimant had retired from W.R. Grace in July 1977, was diagnosed
with cancer in June 1981, and died in May 1992. Claimant, as her husband's
beneficiary, filed an occupational disease claim in July 1982. One of
the issues on appeal was which version of the ODA applied to the claim.
The Supreme Court ultimately concluded, as it did in Lockwood and
Grenz, that the law in effect on the last day of employment governed
the claim. However, the Gidley decision provides
the following analysis on the point:

Our initial question is
which MODA statutes control the claim; those in effect on Mr. Gidley's
last actual day of work in July 1977, or those in effect at the alleged
time of discovery of the disease in June 1981, or those in effect when
the claim was originally filed in July 1982? As to MODA, this issue
is novel. However, it has been considered a number of times
in workers' compensation cases and the Court has concluded that the
statute in effect at the date of accident or injury controls.
See Iverson v. Argonaut Insurance Company (1982), 198 Mont.
340, 342, 645 P.2d 1366, 1367; Yurkovich v. Industrial Accident
Board (1957), 132 Mont. 77, 86, 314 P.2d 866, 872; Chisholm
v. Vocational School for Girls (1936), 103 Mont. 503, 510, 64 P.2d
838, 842-43. We conclude that the same rationale should be applied
in MODA claims. Here, Mr. Gidley's last actual day of work
was in July 1977. We therefore conclude that MODA statutes in effect
on his last actual day of work are controlling.

221 Mont. at 38-39, 717 P.2d
at 22 (emphasis added).

In all three cases, the core
issue involved the statute of limitations applicable to MODA claims. In
Gidley and Lockwood the statute provided that a claim
had to be filed within one year of when the "claimant knew or should have
known that his total disability condition resulted from
an occupational disease claim." § 39-72-403(1), MCA (1977-1983) (emphasis
added). The statute at issue in Grenz provided for a two-year
period from discovery, but was otherwise identical. § 39-72-403(1), MCA
(1985).

The applicable statutes in
both Gidley and Lockwood also provided for an absolute
limitation of three years from the date the claimant or the claimant's
decedent ceased employment. Subsection (3) of section 39-72-403, MCA (1977-1983),
provided:

(3) Notwithstanding the
provisions of subsections (1) and (2) of this section, no claim to recover
benefits under this chapter may be maintained unless the claim is properly
filed within 3 years after the last day upon which the claimant or the
deceased employee actually worked for the employer against whom compensation
is claimed.

Subsection (3) was repealed
in 1985. 1985 Montana Laws, ch. 112, § 2.

In each of the three cited
cases the claimant or the claimant's decedent had ceased working prior
to the filing of the claim for compensation. In that context
the Supreme Court found that the occupational disease claim was governed
by the law in effect on the last day of employment.

The claimant in this case
is not presently permanently totally disabled. She filed her claim while
still working. While she may have ceased working for her original employer
on March 14, 1996, documents in the Court file indicate that she continues
to work, albeit at a different job for a different employer. Under this
circumstance, the Court must heed the underlying rationale set forth in
Gidley.

Gidley requires that
the rationale applicable to workers' compensation claims be applied in
occupational disease cases. Under the WCA, the law in effect at the time
of the accident or injury controls. The rule reflects the fact that the
right to compensation accrues at the time of the industrial injury. In
this case the claimant's right to compensation accrued at the time she
filed her claim since she was suffering from an occupational disease at
that time. Thus, the 1993 law applies to her claim.